According to the law, both partners in a marriage have the legal authority to file an application for a divorce or the termination of the union. However, it is not required that, prior to the filing for a divorce, the spouses should have been separated from each other by means of a contract or by a judgment.
The effect of legal separation is that the spouses are technically still married and the law ‘allows’ the spouses to live separate lives. If spouses are separated, reconciliation cancels the effect of the legal separation whereas if two divorced people reconcile, they need to remarry again, if they wish to.
Divorce can be demanded by two spouses together or by one of the spouses alone. It is not required that prior to the demand of divorce that the spouses are separated from each other by means of a contract or of a judgment. The divorce shall be granted by virtue of a judgment of the competent civil court, usually the Family Court, at the demand of one or the other of the spouses.
Divorce is granted by the court through a decree after the following conditions are satisfied:
– If both spouses ask for divorce, on the date of the commencement of divorce proceedings they need to have lived apart for a period of, or periods that amount to, at least 6 months out of the preceding year, or if divorce is requested by one of the spouses, the spouses shall have lived apart for a period of, or periods that amount to, at least one year out of the preceding two years.
– If on the date of the commencement of divorce proceedings, the spouses are already separated by means of a separation agreement or court judgment, the above does not apply and they can obtain divorce without the said timeframes. In this respect, the court will consider whether there is any reasonable prospect of reconciliation between the spouses and that maintenance is being paid.
If the above conditions are satisfied and divorce is requested by one of the spouses, the other spouse may contest the demand by proving that the spouse demanding divorce has not paid maintenance that was due as ordered by the court or agreed to in the separation contract and that, if the demand for divorce were to be accepted, it would be more difficult for the said other party to obtain the payment of maintenance.
Where the spouses are not separated by means of a contract or a court judgment, the spouse making the demand for divorce may, together with the same demand, make all those demands that are permissible in a cause for separation, including pendente lite (provisional) orders.
Each party undergoing separation proceedings can ask the court to instead consider that the demand for separation made in that cause be considered as a demand for the pronouncement of divorce.
When a request for divorce is made without the spouses having first obtained a separation agreement, mediation is mandatory.
Disclaimer: Nothing in this post should be taken as legal advice, and no action should be taken based on it. Please feel free to contact us at info@elluladvocates.com if you need any additional information or legal support.
